Francis (a pseudonym) v Commonwealth (No 2)

[2023] ACTSC 276

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Francis (a pseudonym) v Commonwealth (No 2)

Citation: 

[2023] ACTSC 276

Hearing Date: 

29 September 2023

Decision Date: 

29 September 2023

Before:

Mossop J

Decision: 

See [17].

Catchwords: 

CIVIL PRACTICE AND PROCEDURE – SUBPOENAS – Application for access to documents that contain protected confidences – documents produced in response to subpoenas – consideration of s 79H Evidence (Miscellaneous Provisions) Act 1991 (ACT) – plaintiff does not oppose disclosure – public interest in disclosure outweighs public interest in preserving the confidentiality of the protected confidences – access granted

CIVIL PRACTICE AND PROCEDURE – SUBPOENAS – Application for leave to issue subpoena for production of documents that contain protected confidences – documents sought fall within the scope of the defendant’s application in proceeding – legitimate forensic purpose in seeking leave – leave granted

Legislation Cited: 

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 79A(1), 79D, 79E, 79F, 79G, 79H

Cases Cited: 

Francis (a pseudonym) v Commonwealth [2023] ACTSC 222

Parties: 

Alan Francis (a pseudonym) (Plaintiff)

Commonwealth of Australia (Defendant)

Representation: 

Counsel

D Ager ( Plaintiff)

J Liang ( Defendant)

Solicitors

Porters Lawyers ( Plaintiff)

Norton Rose Fulbright (Defendant)

File Number:

SC 24 of 2023

MOSSOP J:  

Introduction

1. These proceedings involve a claim by the plaintiff that, as a junior recruit and member of the Royal Australian Navy, he was sexually abused between about mid‑1969 to mid‑1971.

2. On 11 August 2023, leave was granted to the defendant by Curtin AJ to issue subpoenas to the Ramsay Clinic Cairns and Open Arms: see Francis (a pseudonym) v Commonwealth [2023] ACTSC 222. Order 7 of the orders made on that day prohibited any party from accessing the documents produced from those subpoenas without an order of a judge of the Supreme Court.

3. On 25 September 2023, the plaintiff attended the return of subpoenas list before the Senior Deputy Registrar and sought access to the documents subject to the subpoena issued to Open Arms (S2836947). The defendant did not appear. The usual orders as to access were made by the Senior Deputy Registrar.

4. On the same day, the Senior Deputy Registrar made orders in chambers vacating the access orders in relation to that subpoena. It was noted on the benchsheet that, at the return of subpoena hearing, the plaintiff had not alerted the court to the prohibition on access created by order 7 of the orders of Curtin AJ. It was further noted that no inspection or uplift of the material produced by Open Arms occurred between the making of the access order and it being vacated, and that it was the plaintiff that had brought the irregularity to the attention of the Senior Deputy Registrar after the orders had been made.

5. The matter has since been referred to me to be dealt with in accordance with the orders of Curtin AJ.

Application for access

1. The documents the subject of the subpoenas contain “protected confidences” within the meaning of s 79A(1) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).

2. Section 79D provides a general immunity for protected confidences which extends to civil proceedings. Leave is required for the disclosure of a protected confidence: s 79D(2). An application for leave must be made in writing, in accordance with s 79E(1). An application for leave was filed on 27 July 2023 and Curtin AJ was satisfied that there was a legitimate forensic purpose for seeking the leave, as required by s 79F: see Francis at [18].

3. The documents have been received by the court. The plaintiff’s application seeks access on the basis that the test in s 79H is satisfied.

Decision under s 79H

1. Section 79H(1)(a) sets out that, for a civil proceeding, leave may be given for disclosure only if the public interest in ensuring the proceeding is conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidence. In making a decision the court must have regard to the factors set out in s 79H(3).

2. The documents produced by Open Arms were produced on a CD. My associate has printed out those documents and I have examined them in accordance with s 79G(1). These documents contain records of, or related to, counselling communications which occurred in 2003 and 2004 and again in 2014.

3. Section 79H(3)(a) is not applicable as these are not criminal proceedings. So far as the other paragraphs in s 79H(3) are concerned the position is as follows. I have had regard to the public interest in ensuring that victims of sexual offences receive effective counselling or other treatment: s 79H(3)(b). I do not consider that the disclosure of these documents to the extent that they contain protected confidences would dissuade victims of sexual offences from seeking counselling or other treatment or would diminish the value of that counselling: s 79H(3)(c). The evidence will have some probative value in the proceedings. It is likely that there will be other evidence of similar or greater probative value about the plaintiff’s condition generally but not necessarily about his circumstances at the date of the particular records in question: s 79H(3)(d). There is a low prospect that the disclosure of the protected confidences will affect the outcome of the case: s 79H(3)(e). The disclosure is not sought on the basis of a discriminatory belief or bias: s 79H(3)(f). The plaintiff does not object to the disclosure of the protected confidence: s 79H(3)(g). There was a reasonable expectation of confidentiality for the protected confidences: s 79H(3)(h).

4. Having considered these matters it is clear that the public interest in ensuring that the proceedings are conducted fairly clearly outweighs the public interest in preserving the confidentiality of the protected confidences in the Open Arms material.

5. So far as the material produced by Ramsay Clinic Cairns is concerned, those documents are progress notes and other correspondence to and from a psychiatrist. The progress notes contained some reference to the matters the subject of the proceedings but only in the period after those proceedings were either contemplated or commenced. They include references to assaults committed by persons other than those that are the subject of the proceedings.

6. Once again, I have had regard each of the considerations in ss 79H(3)(b)-(h). It is unnecessary to address them individually. The records are unlikely to be of great significance for the case, but they form part of the patchwork of medical records which will undoubtedly be significant in presenting an overall picture of the plaintiff’s health and mental state. The plaintiff does not oppose their disclosure. To the extent that the documents contain protected confidences it is very clear that the public interest in ensuring the proceedings are conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidence.

7. The final category of documents is those produced by the plaintiff pursuant to order 8 of the orders of the court made on 11 August 2023. The documents are documents from the Mt Sheridan Medical Practice and are principally correspondence to and from the consultant psychiatrist the subject of the Ramsay Clinic Cairns records. To the limited extent to which they include counselling communications, the same reasoning applies as was the case in relation to the Ramsay Clinic Cairns records.

Application for leave to issue subpoena

1. Following the delivery of my reasons, both parties sought the issuing of a subpoena to the Mt Sheridan Medical Practice in order to obtain the balance of the records held by that practice relating to the plaintiff. I am satisfied that this falls within the scope of the defendant’s application in proceeding filed 27 July 2023, and hence the requirements of s 79E are complied with. I am also satisfied for the purpose of s 79F that there is a legitimate forensic purpose in seeking that leave, having regard to the nature of the claim for damages sought by the plaintiff and the necessity, for the purposes of prosecuting or assessing a claim, of having access to a comprehensive set of medical records.

Orders

1. The orders of the Court are:

   1.In relation to the documents produced by:

   (i)     Open Arms (S2836947);

   (ii)    Ramsay Clinic Cairns (S2836948); and

   (iii)   The plaintiff pursuant to order 8 of the orders of the court dated 11 August 2023.

   (a)The plaintiff is granted first access today and thereafter access is granted to both parties.

   (b)Leave is granted to both parties to uplift and copy the documents for 24 hours on the condition that a party who uplifts and copies the documents must within 48 hours of the copying of the documents serve a scanned copy of all documents produced on the other party.

   2.I grant leave to both parties to have issued a subpoena to the Mt Sheridan Medical Practice to obtain all medical records it holds relating to the plaintiff and direct that any such subpoena be marked on the front page with the following words “This subpoena is issued for the purposes of s 79G of the Evidence (Miscellaneous Provisions) Act 1991 (ACT)”.

I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 30 October 2023